Draper and Marshall

[2007] FamCA 154

FAMILY COURT OF AUSTRALIA

DRAPER & MARSHALL & ANOR [2007] FamCA 154

FAMILY COURT – COSTS

APPLICANT: MR DRAPER

1ST RESPONDENT: MR MARSHALL

2ND RESPONDENT: MRS DRAPER

FILE NUMBER: PAF 4229 of 1999

DATE DELIVERED: 14 February 2007

PLACE DELIVERED: COFFS HARBOUR

JUDGMENT OF: Jordan J

HEARING DATE: 14 February 2007

REPRESENTATION

THE APPLICANT: In person

1ST RESPONDENT No appearance

COUNSEL FOR THE 2ND RESPONDENT: Mr Davies

SOLICITOR FOR THE RESPONDENT: Fishburn Watson O’Brien, Coffs Harbour

Orders

1. The Application in a Case filed by Mr Draper on 8 November 2006 is dismissed.

1. The Applicant is to pay the costs of the Second Respondent of and incidental to these proceedings, including reserved costs of $800.00 from 8 December 2006, such costs to be paid within 28 days of today’s date if agreed as to quantum, otherwise within 28 days of taxation.

BY WAY OF DIRECTION

1. A transcript of today’s proceedings will be placed on the file.

FAMILY COURT OF AUSTRALIA AT COFFS HARBOUR

FILE NUMBER: PAF4229 of 1999

MR DRAPER 

Applicant

And

MR MARSHALL 

1st Respondent

And

MRS DRAPER 

2nd Respondent

REASONS FOR JUDGMENT

1. For the reasons I have indicated, which will appear on the record, I find that the husband's application filed on 8 November 2006 cannot be sustained, as it does not seek to enforce obligations set out in the orders of this Court on 13 October 1999.

   RECORDED  :  NOT TRANSCRIBED

2. The second respondent seeks an order for costs of and incidental to these proceedings, including $800 reserved costs.  As I said in relation to the substantive proceedings, regrettably for the applicant, the application appears to be misconceived.  It asks this Court to do something that was not set out in the orders of the Court, so in my view the application, on its face, was bound to fail at the outset.  I am satisfied that it was reasonable for the second respondent to seek leave to intervene to be heard in relation to these matters and that, in the circumstances, she has been put to legal expense to defend what, in legal terms, has been an exercise in futility.  Whatever be the merits of the parties' understandings and agreements, the fact of the matter is that the applicant has been wholly unsuccessful and that, in that sense, the second respondent has been put to unnecessary expense to defend inappropriate proceedings.

3. In my view, it is proper that, in those circumstances, she should be given costs of and incidental to these proceedings, including $800 costs reserved from - - -

   RECORDED  :  NOT TRANSCRIBED

4. - - -8 December 2006, such costs to be paid within 28 days of today's date if agreed as to quantum, otherwise within 28 days of taxation.

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date:  8 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Draper & Marshall & Anor